Supreme Court Digest

Supreme Court Digest

This column summarizes all decisions of
the Wisconsin Supreme Court (except those involving lawyer or judicial
discipline, which are digested elsewhere in the magazine). Profs. Daniel
D. Blinka and Thomas J. Hammer invite comments and questions about the
digests. They can be reached at Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

Antitrust

Interstate Commerce - Wis. Stat. chapter
133

Olstad, acting on his own behalf and as a class representative, sued
Microsoft for violating Wis. Stat. chapter 133 by allegedly engaging in
monopolistic activities. The circuit court granted summary judgment in
favor of Microsoft and dismissed the complaint because, the court
concluded, Wis. Stat. section 133.03 applies only to intrastate
commerce. The court of appeals certified a single issue to the supreme
court: Does Wis. Stat. section 133.03 apply to interstate commerce that
affects Wisconsin commerce?

The supreme court, in an opinion written by Justice Prosser, reversed
the circuit court. Microsoft conceded that a state may "enact a statute
reaching interstate commerce" but argued that Wisconsin had not done so.
Because the issue required interpretation of section 133.03, the court
extensively reviewed the history of federal and Wisconsin antitrust
regulation, particularly the Wisconsin legislature's intent when it
repealed and recreated chapter 133 in 1980. (Space limitations preclude
inclusion of a synopsis of the historical background.) The supreme court
concluded that chapter 133, particularly section 133.03, "applies to
interstate commerce, at least in some circumstances" (¶ 74).
"Consistent with this holding," the court withdrew the language from
Conley Publishing Group v. Journal Communications, 2003 WI 119,
¶16, 265 Wis. 2d 128, 665 N.W.2d 879, that "'the scope of Chapter
133 is limited to intrastate transactions'" (¶ 74).

Thus, "[a] civil plaintiff filing an action under Wisconsin's
antitrust act must allege that (1) actionable conduct, such as the
formation of a combination or conspiracy, occurred within this state,
even if its effects are felt primarily outside Wisconsin; or (2) the
conduct complained of 'substantially affects' the people of Wisconsin
and has impacts in this state, even if the illegal activity resulting in
those impacts occurred predominantly or exclusively outside this state"
(¶ 85).

Civil Procedure

Evidence - Expert Privilege

The plaintiff sued a nursing home and one of its employees, Avery,
alleging that they had negligently provided emergency nursing treatment.
During discovery, the plaintiff sought to compel expert opinion
testimony from Avery and two other nursing home employees not named as
parties regarding the standard of care. All three refused to provide
such testimony, relying on the expert privilege first recognized in
Burnett v.Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999)
and Glenn v. Plante, 2004 WI 24, 269 Wis. 2d 575, 676 N.W.2d
413. After several hearings, the circuit court compelled Avery to
testify but refused to order the other two employees to testify.

On bypass from the court of appeals, the supreme court, in an opinion
written by Justice Prosser, affirmed in part and reversed in part the
circuit court's decision. The supreme court's opinion reaffirmed
Alt while "clarify[ing] the duties and privileges of medical
witnesses in a medical malpractice case" (¶ 5). The court laid out
three categories of medical testimony. First, medical witnesses may be
compelled to testify to "facts." "A medical witness may be asked about
her own conduct relevant to the case, including her observations and
thought processes, her treatment of the patient, why she took or did not
take certain actions, what institutional rules and regulations she
believed applied to her conduct, and her training and education
pertaining to the relevant subject. Every person has a right to this
factual evidence" (¶ 28). Second, "the heart of the Alt
opinion is that a medical witness who is unwilling to testify as an
expert cannot be forced to give her opinion of the standard of care
applicable to another person or her opinion of the treatment provided by
another person" (¶ 30).

Third, "medical witnesses who have been accused of malpractice -
negligence causing injury - who may be party defendants" (¶ 36) may
be compelled to testify to the "proper" treatment and questions relating
to cause (see ¶ 39, quoting Shurpit v. Brah, 30
Wis. 2d 388, 141 N.W.2d 266 (1966)). In Carney-Hayes the court
affirmed the Shurpit rule but cautioned: "[W]e understand that
a plaintiff may be motivated to name a medical witness as a defendant or
otherwise accuse the medical witness of causal negligence in order to
transform the person from an Alt witness (who is not required
to give expert opinions) to a Shurpit witness who is so
required. It is improper to name a person a party defendant for the
purpose of eliciting an expert opinion from the person, because such a
person will not be compensated as an expert, will have to spend time
preparing for testimony as an expert, and will normally have to retain
counsel. Courts should not permit litigants to make end runs around
Alt and Glenn by using this tactic. Accordingly, the
circuit court may assess the reasonableness and good faith of a decision
to make a person a Shurpit witness by naming the person as a
defendant or otherwise accusing the witness of causal negligence"
(¶ 42). The supreme court cautioned that circuit courts "must
assure that a defendant/witness from whom expert testimony is required
is not asked to give opinions on subjects beyond the witness's
competence" (¶ 45, citing Wis. Stat. §§ 907.02, 904.02,
.03, 906.11).

The supreme court then applied the analysis to the three witnesses.
Because Avery was accused of providing negligent medical treatment, she
was required to answer questions about the facts and the standard of
care (see ¶ 49). Specifically, "she is a Shurpit
witness" (¶ 50). The second witness, a case manager, must testify
about the plan of care that she prepared but may not be compelled to
address the standard of care, because she was not present at the time of
the injury and her expert opinion is not "unique or irreplaceable"
(¶ 52). The third witness, the director of extended care services,
must testify about her own actions, any training she provided to Avery,
and the nursing home's training standards, but she too may not be
compelled to testify regarding the general standard of care
(see ¶ 60).

Justice Wilcox concurred but wrote separately to clarify the reach of
the expert privilege. Justice Bradley, joined by Chief Justice
Abrahamson and Justice Butler, concurred in part and dissented in part
in an opinion that elucidates the continuing confusion that plagues the
expert privilege. Justice Butler, joined by Chief Justice Abrahamson and
Justice Bradley, also concurred in part and dissented in part. Under
their analysis, both Avery and the case manager could be compelled to
testify about the standard of care.

Physician-Patient Privilege - Waivers
-
Exceptions

The plaintiffs claimed that therapists implanted and reinforced in
their daughter's mind false memories of intrafamily sexual abuse
allegedly perpetrated by the parents. The parents unsuccessfully sought
discovery of their adult daughter's treatment record. The daughter
refused to waive her health care provider-patient privilege under Wis.
Stat. section 905.04 or agree to the disclosure of her confidential
medical records. The supreme court accepted certification from the court
of appeals to determine whether an exception to the privilege should be
recognized in cases such as this. The parents argued that the court need
not address this issue because the daughter had waived the privilege or,
alternatively, because her statements to an unlicensed therapist are not
privileged.

The supreme court, in an opinion authored by Justice Butler, reversed
the circuit court. First, the court held that the daughter did not waive
the privilege under section 905.04. The parents argued that the daughter
"waived her privilege by: (a) signing the authorization for medical
documents release; (b) providing her medical and treatment billing
statements; (c) inviting the Johnsons into her therapy sessions for
confronting them about the alleged abuse; (d) discussing her therapy
with her high school friend ...; (e) filing a restraining order
against the Johnsons; and (f) relaying certain information to her
attorney when she contemplated civil action against the Johnsons for the
abuse. We do not agree that any of these actions or disclosures caused
[the daughter] to waive her privilege" (¶ 37). Second, the court
held that the daughter correctly asserted the privilege with respect to
her communications with an unlicensed professional therapist because she
reasonably believed that her discussions with him would be confidential
(see ¶ 55).

The court held, however, that "public policy requires creating an
exception to therapist-patient confidentiality and privilege where
negligent therapy is alleged to have caused accusations against parents
for sexually or physically abusing their child. Consistent with the
significant purposes underlying the privilege, however, we are still
concerned with maintaining and protecting the therapist-patient
relationship to the greatest extent possible. Along similar lines, we
also are sensitive to the implications of requiring a patient's records
automatically be surrendered whenever a lawsuit such as this is
commenced. Fishing expeditions cannot be allowed. Therefore, we further
conclude that an in camera inspection of the patient's records is
necessary. For guidance on how to fashion the prerequisites and
parameters of this in camera inspection to limit the disclosure of
privileged and confidential material, we turn to criminal law" (¶
71). (The discovery procedure, which is based upon, but deviates from,
criminal procedure, is described at paragraphs 74 to 76 of the
opinion.)

Justice Prosser concurred, joined by Justice Wilcox (regarding the
waiver issue) and Justice Crooks (the entire concurrence). Although
Justice Prosser joined with the majority on most matters, he found that
the daughter had waived confidentiality and the privilege through her
voluntary disclosures. Justice Wilcox concurred in part and dissented in
part. Justice Bradley, joined by Chief Justice Abrahamson, dissented on
the ground that "[t]he rationale proffered by the lead opinion in
carving out an exception to the patient-therapist privilege and right of
confidentiality, and in engrafting criminal procedure to implement the
exception, is supported neither by public policy nor precedent" (¶
152).

Criminal Law

Child Support - Evidence

Smith was convicted of two counts of felony failure to pay child
support. The court of appeals reversed his conviction because it found
that the circuit court had made an error in the jury instructions - the
jury should have been instructed to consider whether a "court of
competent jurisdiction" entered the child support order - and that the
circuit court should not have admitted a certified copy of a Maine
court's child support order.

The supreme court, in an opinion written by Justice Roggensack,
reversed the court of appeals. First, the issue of whether a "court of
competent jurisdiction" entered the child support order is not an
element of the crime under Wis. Stat. section 948.22(1)(a). "Further,
because Smith has not identified a historical fact inconsistent with an
incident of the Maine court's jurisdiction that he and the State
dispute, whether a court of competent jurisdiction ordered him to pay
child support was a purely legal question for the court to determine"
(¶ 23). In essence, the principles of claim preclusion barred Smith
from collaterally attacking the Maine judgment through the Wisconsin
criminal prosecution.

Second, the supreme court held that the circuit court properly
admitted a certified copy of the Maine child support order. A federal
statute that required a judge's certificate was an alternative means of
authenticating the order, not the exclusive means. In this case a
circuit court clerk authenticated the certified copy that was entered
into evidence: the witness, "an employee of the clerk of circuit court's
office, testified that the certified copy of the Maine court order, with
the raised seal of that court, was in the circuit court's file for the
underlying child support case, 92-FA-021. She compared that certified
copy with Exhibit 3 and verified that Exhibit 3 was a copy of the
certified copy of the Maine order. Therefore, she had knowledge, and
testified accordingly, that the certified copy of the Maine court order
had been found in the public office where an item of its nature is kept
and that Exhibit 3 was a copy of that order" (¶ 33).

Justice Butler concurred with the holding that sufficient evidence
supported the conviction but dissented on the ground that Smith had the
right to challenge the lawfulness of the Maine court order in the
Wisconsin prosecution.

Criminal Procedure

Confessions - Voluntariness - Juveniles -
Recording

Jerrell was adjudged delinquent for his role in an armed robbery. The
court of appeals affirmed the judgment.

The supreme court, in a decision authored by Justice Bradley,
reversed in a landmark opinion. First, the court held that the
juvenile's confession to police was involuntary and that its use
violated his due process rights. Voluntary statements are statements
that are the product of a "free will" as determined under the totality
of the circumstances. "Special caution" is taken when assessing the
voluntary nature of juvenile interrogations. A predicate to a finding of
involuntariness is coercive or improper police conduct (see
¶¶ 18-21). In finding that Jerrell's interrogation produced an
involuntary statement, the court closely examined the duration
("multiple hours") and the likely psychological effects of the
techniques (for example, a "strong voice," and an expressed refusal to
believe Jerrell's denials) on a youth with Jerrell's
characteristics.

Second, the court declined to abandon the "totality of the
circumstances" rule that applies to juveniles and to adopt instead a per
se rule that would in effect require children under age 16 to be given
an opportunity to consult with a parent or interested adult. The court
reminded police, however, that statutes require an "immediate attempt"
to notify parents when a juvenile is taken into custody and that in some
cases depriving the juvenile of an opportunity to speak with parents is
"strong evidence" of coercive conduct (¶ 43).

Third, the court exercised its supervisory power to create rules of
evidence and held as follows: "All custodial interrogation of juveniles
in future cases shall be electronically recorded where feasible, and
without exception when questioning occurs at a place of detention.
Audiotaping is sufficient to satisfy our requirement; however,
videotaping may provide an even more complete picture of what transpired
during the interrogation" (¶ 58). "First, a recording requirement
will provide courts with a more accurate and reliable record of a
juvenile's interrogation" (¶ 51). "Second, an accurate record will
reduce the number of disputes over Miranda and voluntariness
issues for juveniles" (¶ 52). "Third, recording will protect the
individual interest of police officers wrongfully accused of improper
tactics" (¶ 53). "Fourth, a recording requirement will enhance law
enforcement interrogations of juveniles" (¶ 54). "Finally, such a
rule will protect the rights of the accused" (¶ 55).

Chief Justice Abrahamson concurred and wrote separately to address
the court's constitutional superintending authority and to advocate a
per se rule that would require juveniles under age 16 to have the
opportunity to consult with an adult. (Justices Bradley, Crooks, and
Butler joined in the first part of the concurrence.) Justice Butler
filed a separate concurring opinion that addressed
juvenile-interrogation tactics. Justice Prosser concurred that Jerrell's
statement was involuntary but dissented from the court's creation of the
mandatory electronic recording rule, arguing that the court was
dictating law enforcement practices under the guise of regulating the
admissibility of evidence at trial. Justice Roggensack, joined in part
by Justice Wilcox, also concurred with the holding that Jerrell's
statement was involuntary but dissented from adoption of the rule of
admissibility that, in effect, mandates electronic recording of
interrogations, because adoption of the rule exceeds the court's
superintending authority.

Pre-Trial Identification Procedures -
Showups

A "showup" is an out-of-court pretrial identification procedure in
which a suspect is presented singly to a witness for identification
purposes (see ¶ 1 n.1). In this case, after the defendant
was arrested, he was placed in the rear seat of a squad car. The police
asked the victim of an armed robbery to view the defendant. The officers
told the victim that the defendant was possibly one of the men who had
robbed him. The victim said that he was "98%" certain that the defendant
was one of the perpetrators. Approximately 10 to 15 minutes after the
first showup, the police conducted a second showup. This time, the
victim identified the defendant, who was alone in a room at the police
station, through a two-way mirror. The victim told police that the
defendant was the same man he observed at the previous showup and that
he believed the defendant was the man who robbed him. A short time after
the second showup, the police showed the victim a mug shot of the
defendant, and the victim identified the defendant a third time.

The defendant moved to suppress the victim's out-of-court
identifications of him. The circuit court denied the motion after
determining that the procedures used were neither impermissibly
suggestive nor the product of an illegal arrest. At trial, the victim
testified about the showups and made an in-court identification of the
defendant. The jury convicted the defendant, and the court of appeals
affirmed. In a majority decision authored by Justice Crooks, the supreme
court reversed.

The defendant argued that the supreme court should apply a per se
exclusionary rule in cases in which out-of-court identifications are
impermissibly suggestive. The state urged the court to reaffirm its
adherence to certain decisions of the U.S. Supreme Court and to conclude
that evidence from an impermissibly suggestive out-of-court
identification can still be used at trial if, based on the totality of
the circumstances, the identification is reliable.

The majority responded by adopting a different test in Wisconsin
regarding the admissibility of showup identifications. "We conclude that
evidence obtained from an out-of-court showup is inherently suggestive
and will not be admissible unless, based on the totality of the
circumstances, the procedure was necessary. A showup will not be
necessary, however, unless the police lacked probable cause to make an
arrest or, as a result of other exigent circumstances, could not have
conducted a lineup or photo array. A lineup or photo array is generally
fairer than a showup, because it distributes the probability of
identification among the number of persons arrayed, thus reducing the
risk of a misidentification. In a showup, however, the only option for
the witness is to decide whether to identify the suspect" (¶
33).

"We emphasize that our approach, which is based to some extent on the
recommendations of the Wisconsin Innocence Project, is not a per se
exclusionary rule like [the defendant] requests. Showups have been a
useful instrument in investigating and prosecuting criminal cases, and
there will continue to be circumstances in which such a procedure is
necessary and appropriate" (¶ 34). An example of this would be when
the police apprehend a suspect during a Terry stop. If that
person is suspected of committing a crime, but the police do not have
the requisite probable cause to arrest and then to conduct a lineup or
photo array, a showup could be considered necessary" (id.
n.11).

"If and when the police determine that a showup is necessary, special
care must be taken to minimize potential suggestiveness. We recommend
procedures similar to those proposed by the Wisconsin Innocence Project
to help make showup identifications as non-suggestive as possible. For
example, it is important that showups are not conducted in locations, or
in a manner, that implicitly conveys to the witness that the suspect is
guilty. Showups conducted in police stations, squad cars, or with the
suspect in handcuffs that are visible to any witness, all carry with
them inferences of guilt, and thus should be considered suggestive.
Next, officers investigating the matter at issue should proceed with
caution in instructing the witness. The investigators must realize that
'a witness's memory of an event can be fragile and that the amount and
accuracy of the information obtained from a witness depends in part on
the method of questioning.' Therefore, an eyewitness should be told that
the real suspect may or may not be present, and that the investigation
will continue regardless of the result of the impending identification
procedure. Finally, it is important that a suspect be shown to the
witness only once. If a suspect is identified, the police have no reason
to conduct further identification procedures. Conversely, if the suspect
is not identified by the witness, he or she should not be presented to
that witness in any subsequent showups. While this list is far from
complete, a showup conducted in accord with these standards will do much
to alleviate the inherent suggestiveness of the procedure" (¶ 35)
(citation omitted).

Applying this approach to the facts before it, the court concluded
that the showups conducted were unnecessarily suggestive and that the
admission of identification evidence denied the defendant his right to
due process under article I, section 8 of the Wisconsin Constitution.
"First, there existed sufficient facts at the time of [the defendant's]
arrest to establish probable cause for his arrest. It was not necessary
for the police to conduct the showups, since they had sufficient
evidence against [the defendant] to arrest him without such showups.
Next, the officers handcuffed [the defendant] and placed him in the back
seat of a squad car. By placing a suspect in a squad car, the police
implicitly suggest that they believe the suspect is the offender.
... Third, the police officers told the witness ... that they
may have caught 'one of the guys' who had robbed him. Such a comment is
suggestive and, as studies have shown, greatly increases the chance of
misidentification. Although the court of appeals stated that it found
'nothing wrong with a police procedure where officers indicate an
individual is a possible suspect,' we consider such a comment
unnecessarily suggestive. Finally, after the first showup was conducted
and [the defendant] was positively identified, the police still
conducted two more identification procedures, another showup and a photo
of [the defendant], at the police station shortly after [the
defendant's] arrival. These subsequent identification procedures were
unnecessarily suggestive. ... While our focus is on the two showups
that occurred here, the photo identification by showing [the victim] a
mug shot of [the defendant], was also unnecessarily suggestive and that
out-of-court identification should have been suppressed" (¶¶
36-37).

The court recognized that the exclusion of evidence of the
out-of-court identifications does not deprive the prosecutor of reliable
evidence of guilt. The witness would still be permitted to identify the
defendant in court if that identification is based on an independent
source. "In other words, if the circuit court determines that any
in-court identification of [the defendant] was not tainted by
out-of-court identifications, then the conviction should stand. The
in-court identification is admissible if the State carries the burden of
showing by clear and convincing evidence that the in-court
identifications were based upon observations of the suspect other than
the out-of-court identification" (¶ 38) (citations and internal
quotations omitted).

Intentional Violation of Miranda
- Suppression of
Physical Evidence Obtained as Direct Result of
Miranda Violation

This case was before the Wisconsin Supreme Court on remand from the
U.S. Supreme Court, which had vacated the state supreme court's decision
in State v.Knapp, 2003 WI 121, 265 Wis. 2d 278, 666
N.W.2d 881 (Knapp I). In Knapp I, the state supreme
court concluded that physical evidence obtained as the direct result of
a Miranda violation is inadmissible when the violation was an
intentional attempt to prevent the suspect from exercising Fifth
Amendment rights. In light of United States v. Patane, 542 U.S.
630 (2004), in which a plurality of the U.S. Supreme Court concluded
that the fruit of the poisonous tree doctrine does not extend to
derivative evidence discovered as a result of a defendant's voluntary
statements obtained without Miranda warnings, the U.S. Supreme
Court vacated Knapp I and remanded the case to the state
supreme court for further consideration.

In a majority decision authored by Justice Butler, the supreme court
concluded "that the fruit of the poisonous tree doctrine applies under
the circumstances of this case under Article I, Section 8 of the
Wisconsin Constitution. Where physical evidence is obtained as the
direct result of an intentional Miranda violation, we conclude
that our constitution requires that the evidence must be suppressed"
(¶ 2).

The majority noted that it "arrive[d] at this conclusion guardedly,
being mindful that the exclusionary rule is not absolute. In Knapp
I, this court agreed that 'because the physical fruits of a
Miranda violation will be trustworthy evidence, it appears that
in most cases the ... analysis boils down to a rule excluding the
fruits of a Miranda violation only when there is a "strong need
for deterrence."' That strong need for deterrence that overcomes the
social costs of excluding evidence is present in this case for the same
two policy reasons we identified in Knapp I" (¶ 74).
First, the conduct at issue in this case was particularly repugnant and
requires deterrence: the officer deliberately questioned the defendant
without providing Miranda warnings - a tactic the officer later
admitted was employed out of concern that the defendant, who tried to
contact his attorney after the officer arrived at his house to arrest
him, might not make a statement if he was provided with Miranda
warnings (see ¶ 14). Second, under the circumstances
present in this case, the "preservation of judicial integrity" requires
that the physical evidence derived from the Miranda violation
be suppressed (see ¶ 79).

Justice Crooks filed a concurring opinion strongly supporting the
majority's decision, but he wrote separately "to emphasize that the
majority opinion serves to reaffirm Wisconsin's position in the 'new
federalism' movement" (¶ 84). Chief Justice Abrahamson and Justices
Bradley and Butler joined this concurrence.

Justice Wilcox filed a dissenting opinion "because the court has
failed to adhere to the doctrine of stare decisis. This court has
previously established that Article I, Section 8 of the Wisconsin
Constitution does not create broader rights than those provided by the
Fifth Amendment of the United States Constitution. Accordingly, I would
affirm the order of the circuit court in conformity with the holding of
United Statesv. Patane, 542 U.S. 630, 124 S. Ct. 2620
(2004)" (¶ 95). Justice Roggensack joined this dissent. Justice
Prosser filed a separate dissent.

New Trial in Interest of Justice -
Standards for New Trial
on Basis of Newly Discovered Evidence

In 1981 the defendant was convicted of first-degree murder and
first-degree sexual assault. In the present litigation, brought under
Wis. Stat. section 974.06, he moved the circuit court to vacate his
convictions. The circuit court denied the motion, and the court of
appeals affirmed.

In a majority decision authored by Justice Butler, the supreme court
reversed the court of appeals, concluding that at the original trial the
real controversy had not been fully tried and therefore the convictions
must be reversed in the interests of justice. The crucial issue in the
underlying, factually complex case was the identification of the
perpetrator of the crimes. However, the jury did not hear important DNA
evidence (which surfaced years later) that bore on the issue of
identification. At trial, the state assertively and repetitively
presented physical evidence (hair and semen recovered at the scene) as
affirmative proof of the defendant's guilt. The state's assertion was
inconsistent with what the later DNA analysis revealed. "We agree with
[the defendant] that the physical evidence now known to exclude [him] as
the donor was used in a manner such that we cannot say with any degree
of certainty that the real controversy has been fully tried" (¶
109).

During this appeal both parties briefed the question of whether the
defendant is entitled to a new trial because the DNA results constitute
"newly discovered evidence." Because the court grounded its decision in
the interests of justice, it declined to decide whether a new trial
should be ordered because of newly discovered evidence. "Nevertheless,
we take this opportunity to clarify the proper test for analyzing newly
discovered evidence" (¶ 157). In a motion for a new trial on this
basis, the defendant must prove, by clear and convincing evidence, that
1) the evidence was discovered after conviction; 2) the defendant was
not negligent in seeking evidence; 3) the evidence is material to an
issue in the case; and 4) the evidence is not merely cumulative. If the
defendant proves these four criteria by clear and convincing evidence,
the circuit court must determine whether a reasonable probability exists
that a different result would be reached in a trial. See State v.
McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997). The court
clarified that, with regard to the reasonable probability that a
different result would be reached in a trial, the clear and convincing
standard does not apply, and it withdrew language to the contrary in
State v. Avery, 213 Wis. 2d 228, 234, 570 N.W.2d 573 (Ct. App.
1997). Said the court, "there need only be a reasonable probability that
a different result would be reached in a trial. There are no gradations
of a reasonable probability; either there is one, or there is not"
(¶ 162).

Justice Roggensack filed a dissenting opinion that was joined by
Justices Wilcox and Prosser.

The defendant was convicted of armed robbery and given a lengthy
prison sentence. He filed a pro se motion for postconviction relief
under Wis. Stat. section 974.06 requesting a new trial on two grounds:
newly discovered evidence and ineffective assistance of his
postconviction counsel. As part of the newly discovered evidence claim,
he included the affidavit of a person who claimed to have met another
inmate while in prison who admitted robbing the victim. The
ineffectiveness claim alleged that postconviction counsel should have
challenged the effectiveness of trial counsel because of the latter's
failure to investigate an exculpatory witness. The circuit court denied
both motions without a hearing. The court of appeals affirmed.

In a majority opinion authored by Justice Butler, the supreme court
reversed. To obtain a hearing on a postconviction motion, a defendant
should include in the motion a historical basis setting forth material
facts that allow the reviewing court to meaningfully assess the
defendant's claims. See State v. Allen, 2004 WI 106, 274 Wis.
2d 568, 682 N.W.2d 433. The Allen court distinguished a merely
conclusory allegation from an assertion of material fact, which the
court defined as "[a] fact that is significant or essential to the issue
or matter at hand." The Allen court proposed that a
postconviction motion is sufficient if it alleges within the document's
four corners "the five 'w's' and one 'h'; that is, who, what, where,
when, why, and how." The Allen decision includes a model motion
that would warrant an evidentiary hearing because it "contains
sufficient material facts - i.e., the name of the witness
(who), the reason the witness is important (why, how), and facts that
can be proven (what, where, when)" (¶ 28, quoting
Allen).

Relying on Allen the supreme court in this case concluded
that the defendant's motion (which is quoted at length in ¶ 31)
contains material facts that permit a court to meaningfully assess the
merits of the ineffective assistance of counsel claim. Responding to the
state's assertion that the motion fails to establish how the exculpatory
witness knows what he claims to know, the court indicated that "a movant
need not demonstrate theories of admissibility for every factual
assertion he or she seeks to introduce. It is clear that [the defendant]
asserts that [the exculpatory witness] has knowledge that can exculpate
[the defendant]. Whether [the witness's] information is ultimately
admissible, however, is not a matter to be decided from the face of the
motion papers. Accepting the statements as true, which we must, the
question is whether there are sufficient objective material factual
assertions that would entitle [the defendant] to relief" (¶¶
36-37). The court went on to conclude that the defendant's motion
alleges sufficient material facts that, if true, would entitle him to
relief.

With regard to the motion for a new trial on the basis of newly
discovered evidence, the court concluded that the motion (which is
quoted at length in

¶ 45) contains sufficient material facts to allow a reviewing
court to meaningfully assess the claim and sets forth sufficient
material facts entitling the defendant to a hearing on his claim.

"In sum, we conclude [the defendant] has presented sufficient
material facts for a reviewing court to meaningfully assess his
ineffective assistance of postconviction counsel and newly discovered
evidence claims. Further, we conclude that [the defendant] is entitled
to an evidentiary hearing on both claims. Although [the defendant's]
motion does not allege sufficient facts that, on their face, would be
admissible at the hearing, the motion papers allege sufficient material
objective factual assertions that, if true, entitle him to relief.
Therefore, we reverse the court of appeals' decision and remand this
case to the circuit court for an evidentiary hearing" (¶ 56).

Justice Prosser filed a dissenting opinion that was joined by Justice
Wilcox.

Child Sexual Abuse - Privilege

A 3-year-old girl told a family therapist that her grandfather, Denis
R., had sexually assaulted her. The clinic director reported the sexual
abuse and Denis was charged with the offense. The girl's mother filed
this appeal, which challenged the court's finding that the mother waived
the therapist-patient privilege by voluntarily disclosing a significant
part of the matter. The court of appeals affirmed.

The supreme court, in an opinion written by Justice Butler, affirmed
and remanded for further proceedings. Although the appeal raised a
number of waiver issues, the court held that the clinic director was
compelled to report the suspected abuse by Wis. Stat. section 48.891,
which in turn "extinguishe[d] [the girl's] privilege under Wis. Stat.
(Rule) § 905.04(4)(e)2." (¶ 7). First, the girl was "examined"
within the meaning of this section (see ¶ 44). Second,
"there was a reasonable ground for an opinion of one of the enumerated
providers in Wis. Stat. (Rule) § 905.04(4)(e)2. that [the girl] had
been abused or neglected and that the abuse or neglect was by means
other than accident or infliction by another" (¶ 46). Such
"enumerated providers" are legally mandated to report suspected abuse to
law enforcement. Because any communications about sexual abuse were not
covered by the privilege, there was no need for an in camera review of
anything the girl may have said to the counselor who treated her. (In a
footnote, the supreme court addressed the status of otherwise
confidential health care records.)

Postconviction Remedies - DNA
Testing

Moran was charged with several criminal counts based on an incident
in which he attacked another man with a knife. Moran represented himself
at trial. Moran contended that the victim had attacked him first and
referred several times in his argument to a "bloody brick." The jury
convicted him. Moran later appealed his convictions, still proceeding
pro se. This case involves Moran's request that DNA testing on the brick
be conducted, pursuant to Wis. Stat. section 974.07.

The supreme court, in an opinion authored by Justice Prosser, held as
follows: "The plain language of § 974.07(6) gives a movant the
right to conduct DNA testing of physical evidence that is in the actual
or constructive possession of a government agency and that contains
biological material or on which there is biological material,
if the movant meets several statutory prerequisites. First, the
movant must show that the evidence meets the conditions under Wis. Stat.
§ 974.07(2). Second, the movant must comply with all reasonable
conditions imposed by the court to protect the integrity of the
evidence. Third, the movant must conduct any testing of the evidence at
his or her own expense. If a movant seeks DNA testing at public expense,
the movant must proceed under § 974.07(7)(a) or (b), and satisfy
the heightened requirements in subsection (7)" (¶ 3).

The court remanded the matter for proceedings consistent with this
holding. On remand, Moran will bear the burden of showing that the test
results are relevant to his conviction or sentence. Allowing the DNA
testing does not, in short, "guarantee that he will get a new trial, or
even an evidentiary hearing" (¶ 47). "The harsh reality of life is
that some persons who have been convicted of crime may have the means to
hire attorneys or investigators post-conviction under circumstances that
would never justify the expenditure of public money. The court is being
asked in this case to prevent a person from conducting DNA testing at
his own expense. We are unable to discern from the plain language of
§ 974.07 a clear legislative intent to block testing demanded by a
person willing and able to pay until that person satisfies the
requirements for publicly funded DNA testing. We encourage the
legislature to revisit Wis. Stat. § 974.07 to define undefined
terms, set limits to the evidence that must be provided, and give courts
clear guidelines in procedure" (¶ 56).

Justice Wilcox, joined by Justice Roggensack, concurred but strongly
urged the legislature "to take a hard look at the practical
consequences" of the DNA-testing statute (see ¶59).

Jane E.P. resides at a nursing home in Illinois pursuant to an order
of an Illinois court. Some of Jane's relatives, who live in Grant
County, Wisconsin, want to move Jane to a nursing home in Grant County.
The Grant County Department of Social Services petitioned to be made
guardian of Jane and for her protective placement at a local nursing
home. The circuit court ordered the Unified Board of Grant and Iowa
Counties to make a comprehensive evaluation of Jane. Instead, the board
moved to dismiss the guardianship and protective placement petition on
the ground that the court lacked competency to proceed. The board argued
that Jane is a resident of Illinois and that Wis. Stat. section
55.06(3)(c) requires her to be a Wisconsin resident at the time the
petition is filed. The circuit court agreed with the board and dismissed
the matter based on Jane's nonresidency. The court of appeals reversed
the circuit court, holding that section 55.06(3)(c), as applied to Jane,
violated her constitutional right to interstate travel. See
2004 WI App 153, ¶22, 275 Wis. 2d 680, 687 N.W.2d 72.

In a decision authored by Justice Bradley, the supreme court vacated
the decision of the court of appeals and remanded the case for the
circuit court to consider the petition again in light of certain
standards adopted by the court in this opinion. The court began its
analysis by observing that "the problem in this case and others like it
is that current laws are generally insufficient to assist courts and
litigants in resolving multi-jurisdictional issues stemming from
interstate guardianships. ... We strongly encourage the legislature
to address this issue. In facilitating this end, we direct its attention
to the work of both the National College of Probate Judges and the
National Conference of Commissioners on Uniform State Laws referenced
later in this opinion. However, in the absence of legislative guidance,
we set forth standards for Wisconsin courts to follow when confronting
cases associated with the interstate transfer of guardianships"
(¶¶ 27-28).

The court adopted the following National Probate Court Standards:
Standard 3.5.1 (Communication and Cooperation Between Courts), 3.5.3
(Transfer of Guardianship), 3.5.4 (Receipt and Acceptance of a
Transferred Guardianship), and 3.5.5 (Initial Hearing in the Court
Accepting the Transferred Guardianship). (In a footnote, the court also
referenced Standard 3.5.2, which pertains to the recommended screening
and review process of a petition for guardianship. Though not the focus
of this case, the court nonetheless quoted this standard "for guidance
in future cases" (see ¶ 36 n.15).) After describing each
of these standards and the official commentary accompanying them, the
court concluded by recognizing that "the standards will not solve every
problem associated with interstate guardianships. However, in the spirit
of comity and to promote the orderly administration of justice, they are
to be employed for the interstate transfer of guardianships. These
standards will help Wisconsin courts facilitate the geographic mobility
of those individuals that guardianship orders were designed to protect"
(¶ 46).

The constitutionality of section 55.06(3)(c), which requires that the
petition be filed in the county of residence of the person to be
protected, was addressed by Justice Crooks in a concurring opinion that
garnered the support of a majority of the justices. The majority
concluded that the statute is "rationally related to protecting and
preserving the county's and the State's ability to provide services to
its own bona fide residents in preference to those persons who reside in
other states" (¶ 57).

Justice Roggensack filed an opinion concurring in part with and
dissenting in part from the majority's opinion. She concluded that the
statute is constitutional but also that the circuit court's order
dismissing the petition for guardianship should be affirmed.

Jury Trial

The defendant was charged with speeding. He sought trial by a jury of
12, arguing that he was entitled to a 12-person jury under article I,
section 5 of the Wisconsin Constitution and that the provision of Wis.
Stat. section 345.43 for six-person juries in traffic forfeiture cases
that are tried in circuit court is therefore unconstitutional. The
circuit court denied the defendant's request for a 12-person jury.
Following trial before a jury of six, the defendant was convicted. The
court of appeals affirmed.

Writing the lead opinion for three justices of the supreme court,
Justice Prosser concluded that the defendant "has not satisfied the
heavy burden of showing that Wis. Stat. § 345.43 is
unconstitutional. Because he cannot show that the cause of action for a
speeding violation existed at the time the Wisconsin Constitution was
enacted, he has no constitutional right to a trial by a jury of 12. As
such a right is not constitutionally mandated, the legislature is free
to fix the number of jurors at six, as it has done" (¶ 51)
(citation omitted).

However, in a footnote, the court acknowledged that "the four
concurring and dissenting justices, although split on the number of
jurors to which [the defendant] is entitled, conclude that [the
defendant] has a constitutional right to a jury trial and form a
majority on that issue" (¶ 3 n.2). The concurring opinion of
Justice Bradley, joined by Chief Justice Abrahamson and Justice Crooks,
concluded that the defendant has a state constitutional right to a jury
trial before six jurors (see ¶ 52). In dissent Justice
Butler contended that the defendant has a state constitutional right to
a jury of 12 (see ¶ 72). As characterized by Justice
Bradley, her concurrence together with the dissent of Justice Butler
"form a majority on the constitutional issue that such a right exists
and, at a minimum, it is to a six-person jury" (¶ 70 n.28). In a
footnote, Justice Bradley further clarified that "this decision is not
to be read, however, that there is a constitutional right to a
six-person jury trial in municipal court. Rather, the right is exercised
when upon appeal there is a jury trial in circuit court. See Ogden
v. City of Madison, 111 Wis. 413, 87 N.W. 568 (1901) (the
constitutional right to trial by jury does not extend to a prosecution
for a violation of a city ordinance in municipal court)" (¶ 70
n.28).

This case involved open records law requests filed by a city of
Baraboo police officer (the plaintiff) for documents generated during an
internal department investigation of sexual harassment that he allegedly
committed. He claimed a right to inspect the records under both Wis.
Stat. section 19.35(1)(a), which provides that "[e]xcept as otherwise
provided by law, any requester has a right to inspect any record," and
section 19.35(1)(am), which provides that "any requester who is an
individual ... has a right to inspect any record containing
personally identifiable information pertaining to the individual," with
certain statutory exceptions. Although a substantial amount of
information (some in redacted form) had been turned over to the
plaintiff, he filed this complaint after the police chief denied his
request for any documents related to the department's internal
investigation and for some of the redacted information in documents
already provided to him. The circuit court granted summary judgment to
the city and its police department. The court of appeals affirmed. In a
majority decision authored by Justice Prosser, the supreme court
affirmed the court of appeals.

The first issue addressed by the supreme court was whether section
19.35(1)(am) gives a police officer the personal right to inspect
records compiled by a police department in its internal investigation of
a sexual harassment complaint against the officer. The court concluded
that "when a person makes an open records request for records containing
personally identifiable information under Wis. Stat. §
19.35(1)(am), the person is entitled to inspect the records unless the
surrounding factual circumstances reasonably fall within one or more of
the statutory exceptions to paragraph (am)" (¶ 3). In this case the
court held that the plaintiff was the subject of an investigation "in
connection with a complaint," which is one of the express statutory
exceptions. "The internal investigation records were maintained in
connection with that complaint and are being held for possible use in
connection with any future complaint. Disclosure of the records would
also expose the names and statements of informants who were promised
confidentiality for their cooperation in the internal investigation"
(¶ 57). Thus, the plaintiff was not entitled to the additional
information he sought. (The court noted that, if a statutory exception
to section 19.35(1)(am) is present in a case, the request for
information may be denied without any requirement that the custodian
balance interests (see ¶ 27).)

The second question before the court was whether section 19.35(1)(a)
gives the public, including the police officer, a right to inspect a
police department's records of an internal sexual harassment
investigation and unredacted copies of related documents under the
following circumstances: the department does not bring disciplinary
charges against the officer; the department articulates several specific
concerns about the confidentiality and privacy of cooperating witnesses
and its ability to conduct future internal investigations; and the
department releases redacted records that preserve witness
confidentiality but expose the nature of the harassment complaint.

The court summarized the process a custodian must follow in
responding to a general open records request under section 19.35(1)(a):
"Keeping in mind the strong legislative presumption favoring disclosure,
[the records custodian] must determine whether the requested records are
subject to an exception that may or will prevent disclosure. Two general
types of exceptions may apply: statutory exceptions and common law
exceptions. If neither a statute nor common law creates a blanket
exception, the custodian must decide whether the strong presumption
favoring access and disclosure is overcome by some even stronger public
policy favoring limited access or nondisclosure" (¶ 4) (citations
omitted).

In this case, because no blanket exception to disclosure existed, the
court proceeded to consider the balancing a records custodian must
perform when considering an open records request under section
19.35(1)(a). "[T]he custodian must consider 'all the relevant factors'
to determine 'whether permitting inspection would result in harm to the
public interest which outweighs the legislative policy recognizing the
public interest in allowing inspection.' In other words, the custodian
must determine whether the surrounding factual circumstances create an
'exceptional case' not governed by the strong presumption of openness.
Although our prior cases have not expressly defined 'exceptional case,'
we conclude that an 'exceptional case' under paragraph (a) exists when
the facts are such that the public policy interests favoring
nondisclosure outweigh the public policy interests favoring disclosure,
notwithstanding the strong presumption favoring disclosure"
(¶ 63) (citations omitted).

Applying the "exceptional case" public policy balancing test, the
court concluded that the public's interest in keeping these records
confidential outweighed the presumptive public interest in disclosure.
Among the many factors at issue were the previous release of the
redacted documents, the police department's concern that future
complainants and witnesses will be less likely to make candid statements
(especially in sexual harassment cases) if they know that the accused
may access their statements through an open records request, the police
department's fear that morale may be diminished if officers believe that
their personnel files are readily available to the public, the
department's concern that future recruiting could be harmed by a
perception that personnel files are regularly open for public review,
and the department's fear that some of the information that would be
released might be factually inaccurate and cause damage to the subject's
reputation.

Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justices Bradley and Butler.

Public Works Projects

Bidding on Public Works Projects -
Remedial Mechanism for
Dealing with Bidder Errors

James Cape & Sons Co. (Cape) submitted a bid for a highway
project. After the bids were opened, Cape realized that it had neglected
to incorporate a last-minute change from a subcontractor into its bid.
It sought to amend the bid or, failing that, to withdraw the bid and
recover its $100,000 proposal guaranty (bid bond). The Wisconsin
Department of Transportation (DOT) did not allow Cape relief from the
bid mistake, awarded Cape the contract, and when Cape refused to
perform, retained Cape's bid bond. Cape filed suit to recover its bid
bond. The circuit court granted summary judgment in favor of Cape. The
court of appeals affirmed. See 2003 WI App 229. In a unanimous
decision authored by Justice Prosser, the supreme court affirmed the
court of appeals.

Wis. Stat. section 66.0901 governs the process for bidding on public
works projects. Section 66.0901(5), which provides the remedial
mechanism for dealing with bidder errors, provides as follows: "If a
bidder makes an error, omission or mistake and discovers it after the
bids are opened, the bidder shall immediately and without delay give
written notice and make known the fact of the mistake, omission or error
which has been committed and submit to the municipality clear and
satisfactory evidence of the mistake, omission or error and that it was
not caused by any careless act or omission on the bidder's part in the
exercise of ordinary care in examining the plans or specifications and
in conforming with the provisions of this section. If the discovery and
notice of a mistake, omission or error causes a forfeiture, the bidder
may not recover the moneys or certified check forfeited as liquidated
damages unless it is proven before a court of competent jurisdiction in
an action brought for the recovery of the amount forfeited, that in
making the mistake, error or omission the bidder was free from
carelessness, negligence or inexcusable neglect."

Applying this statute the supreme court first concluded that "[t]he
plain language of § 66.0901(5) does not contemplate bid amendment
[after the bids are opened], and as a result we must conclude that
municipalities [including the state] do not have the authority to permit
a bidder to amend its bid. Thus, the only relief available to a bidder
that acknowledges a mistake, error, or omission in its bid is to request
that its bid be withdrawn from consideration" (¶ 46).

The next matter addressed by the court was bid withdrawal. Cape had
asked to withdraw its bid if it could not correct the bid. The DOT
refused this request, conditioning withdrawal on Cape's forfeiture of
the bid bond. The court concluded that section 66.0901(5) is a modified
codification of the equitable rescission doctrine. The limitations to
the doctrine imposed by the statute are that "(1) a bidder who withdraws
may not correct the bid or (2) a bidder who asks to withdraw
after the bids are opened but before the contract is awarded
must show that the bidder has met all the conditions set out
[in the first sentence of the portion of the statute quoted above]. That
is, a bidder must prove by clear and satisfactory evidence that the
error was not caused 'by any careless act or omission on the bidder's
part in the exercise of ordinary care in examining the plans and
specifications and in conforming with the provisions of this section.'
The language of the statute normally permits a bidder to withdraw if the
bidder satisfies the conditions in the [first sentence in the portion of
the statute quoted above], but a fair-minded, even-handed municipality
is not an impotent municipality. A municipality is entitled to go
forward to award the contract and trigger forfeiture of the bid bond if
the bidder has not satisfied the conditions for withdrawal, if the
bidder is not acting in complete good faith, or if the municipality can
show that it has been prejudiced by the bidder's error" (¶¶
60-61).

Lastly, the court considered the forfeiture of bid bonds. "[Section]
66.0901(5) creates a cause of action for a bidder to recover a forfeited
bid bond where the public works contract is awarded but not performed.
In a cause of action to recover a proposal guaranty, the circuit court
employs a de novo standard of review, and may take additional evidence
in determining whether the bidder is free of carelessness, negligence,
or inexcusable neglect and thus entitled to the return of the bond"
(¶ 5). (Editors' Note: Attorneys practicing in this area
of the law should carefully review paragraphs 69 and 70 of this
decision, in which the supreme court laid out the analytical steps a
court should follow when conducting a review under section
66.0901(5).)

In this case the supreme court concluded that the DOT operated under
an incorrect theory of law when it failed to properly consider Cape's
timely request to withdraw its bid without forfeiting its bid bond. In
the judicial hearing to recover the bond, Cape satisfied all of the
requirements for bid withdrawal and the circuit court held that Cape was
free from negligence. The supreme court declined to upset the circuit
court's finding. Accordingly, the supreme court affirmed the court of
appeals' decision upholding summary judgment in favor of Cape.

Torts

Lead Paint Litigation - Application of
Risk - Contribution Theory

The plaintiff claimed that he sustained injuries from lead poisoning
by ingesting lead paint from accessible painted surfaces, paint chips,
paint flakes, and dust at homes he lived in as a child. The defendants
(or their predecessors-in-interest) are pigment manufacturers. Pigment
is one of two major components in paint, and the predominant lead
pigment that was manufactured and integrated into paint was white lead
carbonate. All of the defendant pigment manufacturers (or their
predecessors-in-interest) produced this pigment at various times since
the early 1900s, when the houses in which the plaintiff lived were
built. The plaintiff, who alleged that he was injured by white lead
carbonate pigment, has been unable to identify the precise producer of
the white lead carbonate pigment he ingested at his prior residences due
to the generic nature of the pigment, the number of producers, the lack
of pertinent records, and the passage of time.

In his suit against the pigment manufacturers, the plaintiff alleged
that they are liable on the basis of, among other things, strict
liability, negligence, conspiracy, and enterprise liability. The circuit
court granted summary judgment in favor of the defendants. In a
published decision the court of appeals affirmed. See 2004 WI
App 131. The appellate court concluded that because the plaintiff had a
remedy against his landlords for their negligence in failing to abate
lead paint hazards in his prior residences, there was no reason to
extend risk-contribution theory (described below) to his case. The court
of appeals also concluded that the plaintiff could not proceed on his
claims of civil conspiracy and enterprise liability. In a majority
decision authored by Justice Butler, the supreme court affirmed in part
and reversed in part.

The plaintiff argued that the court of appeals' decision should be
reversed because "(1) although he received a remedy from his landlords
for their negligence, Article I, Section 9 of the Wisconsin Constitution
does not foreclose his seeking a remedy for the Pigment Manufacturers'
separate wrong for producing and promoting toxic lead pigments; (2)
risk-contribution theory [as developed in Collins v. Eli Lilly
Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984)] should be recognized
for white lead carbonate claims; and (3) he has presented sufficient
material facts to warrant a trial on his alternative theories of
liability of civil conspiracy and enterprise liability" (¶ 2).

The majority agreed with the plaintiff that article I, section 9 does
not insulate wrongdoers from liability simply because recovery has been
obtained from an altogether different wrongdoer for an altogether
different wrong. This section of the state constitution provides as
follows: "Every person is entitled to a certain remedy in the laws for
all injuries, or wrongs which he may receive in his person, property, or
character; he ought to obtain justice freely, and without being
obligated to purchase it, completely and without denial, promptly and
without delay, conformably to the laws."

The majority also concluded that the white lead carbonate claims at
issue in this case are factually similar enough to the claims in
Collins to warrant extension of the risk-contribution theory.
The Collins plaintiff claimed that, while she was in utero, her
mother used diethylstilbestrol (DES) to prevent miscarriage and that
this caused the plaintiff to develop adenocarcinoma of the vagina and
other problems almost 20 years later. The plaintiff's mother could not
remember where she purchased the DES or who manufactured it. The
plaintiff sued 12 drug companies, all of which produced or marketed DES;
however, she could not identify the precise producer or marketer of the
DES taken by her mother due to the generic status of some DES, the
number of producers or marketers, the lack of pertinent records, and the
passage of time. The Collins court was thus faced with a choice
of either fashioning a method of recovery for the DES case that would
deviate from traditional notions of tort law or permitting possibly
negligent defendants to escape liability for injury of an innocent
plaintiff. "In the interests of justice and fundamental fairness," the
Collins court chose the former, observing that article I,
section 9 of the Wisconsin Constitution conferred on the court the
ability to create an adequate remedy when one did not exist
(see ¶¶ 102-03).

Accordingly, the Collins court adopted the risk-contribution
theory, which relaxed the plaintiff's burden of proof in establishing
causation in her negligence and product liability claims. It did so for
three reasons. "First, '[e]ach defendant contributed to the
risk of injury to the public and, consequently, the risk of
injury to individual plaintiffs. ...' In this sense, each shared
some measure of culpability in producing or marketing the drug. Second,
because the drug companies were in a better position to absorb the cost
of the injury (through either insurance, incorporation of the damage
awards, or by passing the cost along to the public as 'a cost of doing
business,') this court concluded that 'it is better to have drug
companies or consumers share the cost of the injury than to place the
burden solely on the innocent plaintiff.' Third, the court recognized
that 'the cost of damages awards will act as an incentive for drug
companies to test adequately the drugs they place on the market for
general medical use'" (¶ 104) (citations omitted).

Having concluded that the white lead carbonate claims in this case
are similar enough to Collins to warrant extension of the
risk-contribution theory, the majority proceeded to lay out what the
plaintiff must prove at trial. Regarding his negligence claim he will
have to prove the following elements: "(1) that he ingested white lead
carbonate; (2) that the white lead carbonate caused his injuries; (3)
that the Pigment Manufacturers produced or marketed the type of white
lead carbonate he ingested; and (4) that the Pigment Manufacturers'
conduct in producing or marketing the white lead carbonate constituted a
breach of a legally recognized duty to [the plaintiff]. Because [the
plaintiff] cannot prove the specific type of white lead carbonate he
ingested, he need only prove that the Pigment Manufacturers produced or
marketed white lead carbonate for use during the relevant time period:
the duration of the houses' existence" (¶ 161).

The plaintiff will have to prove the following elements to the
satisfaction of the trier of fact to prevail on his strict products
liability claim: "(1) that the white lead carbonate was defective when
it left the possession or control of the pigment manufacturers; (2) that
it was unreasonably dangerous to the user or consumer; (3) that the
defect was a cause of [the plaintiff's] injuries or damages; (4) that
the pigment manufacturer engaged in the business of producing or
marketing white lead carbonate or, put negatively, that this is not an
isolated or infrequent transaction not related to the principal business
of the pigment manufacturer; and, (5) that the product was one which the
company expected to reach the user or consumer without substantial
change in the condition it was when sold" (¶ 162).

"Once [the plaintiff] makes a prima facie case under either claim,
the burden of proof shifts to each defendant to prove by a preponderance
of the evidence that it did not produce or market white lead carbonate
either during the relevant time period or in the geographical market
where the house is located. However, if relevant records do not exist
that can substantiate either defense, 'we believe that the equities of
[white lead carbonate] cases favor placing the consequences on the
[pigment manufacturers].' In addition to these specific defenses, and
unlike in the DES cases, the Pigment Manufacturers here may have ample
grounds to attack and eviscerate [the plaintiff's] prima facie case,
with some of those grounds including that lead poisoning could stem from
any number of substances (since lead itself is ubiquitous) and that it
is difficult to know whether [the plaintiff's] injuries stem from lead
poisoning as they are not signature injuries" (¶ 163) (citations
omitted).

Lastly, the majority concluded that the plaintiff did not present
sufficient material facts to warrant a trial on his civil conspiracy and
enterprise liability claims.

Justice Wilcox filed a dissent that was joined by Justice Prosser.
Justice Prosser filed a dissent that was joined by Justice Wilcox.
Justice Roggensack did not participate in this case.

Economic Loss Doctrine - Damage to "Other
Property"

The plaintiffs specialize in raising calves. For the first few weeks
of their lives, the calves are fed a milk substitute or "milk replacer."
The plaintiffs used replacer products purchased from Cargill, Inc. and
manufactured by Milk Products, Inc. Initially the plaintiffs used a
replacer that included medications. They later switched to a less
expensive replacer without medication. After making the switch, they
noticed that their calves were not gaining weight properly, appeared
gaunt and hungry, and experienced a much higher mortality rate. The
plaintiffs filed suit against Cargill and Milk Products, alleging four
tort causes of action and one contract cause of action.

The circuit court granted summary judgment in favor of the defendants
on all four tort claims, finding that those claims were barred by the
economic loss doctrine. It also granted summary judgment in favor of
Milk Products on the contract claim because there was no privity between
the plaintiffs and Milk Products, and it dismissed Milk Products from
the case. This left only the plaintiffs' contract claim against Cargill.
The court of appeals affirmed. The supreme court granted review to
determine whether the plaintiffs' tort claims are barred by the economic
loss doctrine. In a majority decision authored by Justice Prosser, the
supreme court affirmed.

The court began its analysis with an overview of the economic loss
doctrine. "The economic loss doctrine is a judicial doctrine intended to
preserve the fundamental distinction between contract and tort. It works
to prevent a party to a contract from employing tort remedies to
compensate the party for purely economic losses arising from the
contract. There are exceptions. For instance, we noted several years ago
that '[t]he economic loss doctrine does not preclude a product
purchaser's claims of personal injury or damage to property other
than the product itself.' Over time, however, the parameters of
this 'other property' exception have proved elusive. In this case, we
must decide whether the [plaintiffs'] claimed damages fall within the
scope of the 'other property' exception" (¶ 2) (citations
omitted).

The court held that "if claimed damages are the result of
disappointed expectations of a bargained-for product's performance, the
economic loss doctrine applies to bar the plaintiff's tort claims and
the plaintiff must rely upon contractual remedies alone. In this case,
the [plaintiffs] allege in tort that the object of the contract, a 'milk
replacer' intended for livestock nourishment, did not adequately nourish
their calves and that some died. Because we find that this tort claim
is, at bottom, based on disappointed performance expectations, we hold
that it does not fit within the 'other property' exception and is
therefore barred by the economic loss doctrine" (¶ 3).

Chief Justice Abrahamson filed a dissent that was joined by Justice
Butler. Justice Bradley withdrew from participation in this case.

Kaloti, a food products wholesaler, had a longstanding practice of
purchasing Kellogg's products through Kellogg's agent for resale to
large stores. The plaintiff alleged that Kellogg decided to begin
selling these products directly to the same stores and did not inform
the plaintiff of this decision. Kellogg's agent then solicited from the
plaintiff a large order, which was delivered and paid for. The plaintiff
later was notified by the large stores that they would no longer
purchase Kellogg's products from the plaintiff because Kellogg was
selling directly to them. The plaintiff attempted to return the product,
but Kellogg refused to accept delivery and refused to reimburse the
plaintiff. The plaintiff sued Kellogg and the agent for intentional
misrepresentation (sometimes referred to as fraudulent
misrepresentation).

The circuit court dismissed the plaintiff's complaint. The court of
appeals certified the case to the supreme court, identifying the
following questions for consideration: 1) whether a duty to disclose
facts arises between sophisticated parties to a commercial transaction
when the parties have an established practice of doing business and the
facts are material to a change in that practice of doing business; and
2) whether the plaintiff's intentional misrepresentation claim is barred
by the economic loss doctrine (see ¶ 1).

In a majority decision authored by Justice Roggensack, the supreme
court reversed. The court stated that the following allegations must be
made to state a claim for intentional misrepresentation: "(1) the
defendant made a factual representation; (2) which was untrue; (3) the
defendant either made the representation knowing it was untrue or made
it recklessly without caring whether it was true or false; (4) the
defendant made the representation with intent to defraud and to induce
another to act upon it; and (5) the plaintiff believed the statement to
be true and relied on it to his/her detriment. An intentional
misrepresentation claim may arise either from a 'failure to disclose a
material fact' or from a 'statement of a material fact which is untrue.'
Here, [the plaintiff's] intentional misrepresentation claim is based on
the failure to disclose a material fact. However, '[a] person in a
business deal must be under a duty to disclose a material fact before he
can be charged with a failure to disclose.' When there is a duty to
disclose a fact, the law has treated the failure to disclose that fact
'as equivalent to a representation of the nonexistence of the fact.'
Whether [the defendants] had a duty to disclose is the only aspect of
[the plaintiff's] intentional misrepresentation claim that is at issue
here" (¶¶ 12-14) (citations omitted).

"The usual rule is that there is no duty to disclose in an
arm's-length transaction. However, courts have carved out a number of
exceptions to that rule and have refused to apply the rule when to do so
would work an injustice" (¶ 15). In this case the supreme court
concluded that "a party to a business transaction has a duty to disclose
a fact where: (1) the fact is material to the transaction; (2) the party
with knowledge of that fact knows that the other party is about to enter
into the transaction under a mistake as to the fact; (3) the fact is
peculiarly and exclusively within the knowledge of one party, and the
mistaken party could not reasonably be expected to discover it; and (4)
on account of the objective circumstances, the mistaken party would
reasonably expect disclosure of the fact" (¶ 20). Applying these
principles the court concluded that the allegations in the plaintiff's
amended complaint satisfy statutory pleading requirements and are
sufficient, if proved at trial, to establish that the defendants each
had a duty of disclosure.

The defendants also argued that the economic loss doctrine bars the
plaintiff's intentional misrepresentation claim. In general this
doctrine precludes contracting parties from pursuing tort recovery for
purely economic or commercial losses associated with the contract
relationship. Wisconsin courts have recognized that the economic loss
doctrine bars misrepresentation claims based in negligence and strict
responsibility. However, before this case, they had not decided whether
and to what extent the economic loss doctrine bars claims for fraud in
the inducement.

The supreme court concluded that "a fraud in the inducement claim is
not barred by the economic loss doctrine 'where the fraud is extraneous
to, rather than interwoven with, the contract.' To invoke this narrow
fraud in the inducement exception where, as here, the failure of a party
to a business transaction to disclose a fact serves as the basis for a
fraudulent inducement to contract claim, a plaintiff must show that: (1)
there was an intentional misrepresentation, the five elements of which
are set out above; (2) the misrepresentation occurred before the
contract was formed; and (3) 'the fraud [was] extraneous to, rather than
interwoven with, the contract.' Or stated another way, the fraud
concerns matters whose risk and responsibility did not relate to the
quality or the characteristics of the goods for which the parties
contracted or otherwise involved performance of the contract" (¶
42). Applying this standard to the present case, the court concluded
that the economic loss doctrine does not bar the plaintiff's claim for
intentional misrepresentation.

Chief Justice Abrahamson filed a concurring opinion that was joined
by Justices Bradley and Butler.

Economic Loss Doctrine -
Homeowners

The Lindens sued their general contractor, Groveland, and various
subcontractors, including Cascade and Fern, for alleged "faulty
workmanship" in the construction of their home. The circuit court
dismissed negligence claims against Cascade and Fern on the ground that
the economic loss doctrine precluded the claims. The court of appeals
affirmed.

The supreme court, in a decision authored by Justice Roggensack,
affirmed. The court addressed three issues. First, the court considered
"whether a general contract to complete a described project, whereunder
the general contractor subcontracts with others to assist in completing
the project and a claim is made for negligent services provided by the
subcontractors, controls the analysis of whether the contract is
primarily for goods or primarily for services" (¶ 4). "Cascade and
Fern argue that examining the service subcontracts rather than the
Lindens' contract with the general contractor, Groveland, would allow
the Lindens to make an end run around the contract for which Groveland
and the Lindens bargained. We agree. Focusing on the contract for which
the purchaser bargained maintains the distinction between tort and
contract for the purchaser who is in the best position to bargain for
coverage of the risk of faulty workmanship in any part of the house. The
Lindens did exactly that here. They had contractual remedies against
Groveland, who in turn had its own remedies against the subcontractors.
... Allowing the Lindens to maintain a tort claim against the
subcontractors for services rendered to the general contractor would
undermine the distinction between contract law and tort law that the
economic loss doctrine seeks to preserve. We also conclude that allowing
the Lindens to maintain a tort action against the subcontractors harms
the Lindens' and Groveland's freedom of contract, because permitting the
Lindens to maintain a tort claim would get around the warranties and
remedies they had already bargained for with Groveland. Because we
conclude that according the general contract control over this
transaction better meets the policies underlying the economic loss
doctrine, we apply the predominant purpose test to the contract between
the Lindens and Groveland" (¶ 17).

Second, the court held that although the Lindens made "good
arguments" in favor of a "quantitatively objective test when
determining" a contract's predominant purpose, "the totality of the
circumstances test, which includes both quantitatively objective and
subjective factors, should be applied to determine the predominant
purpose of a contract" (¶ 18). In applying the test, the court
concluded that "the predominant purpose of the contract was for a
product, a new house, rather than one for services" (¶ 25).

Third, the court held that "the 'integrated systems limitation' of
the 'other property exception' to the economic loss doctrine applies to
bar a negligence claim against a subcontractor who provided services in
the construction of a house" (¶ 26). "The stucco and roof shingling
have no independent value or use apart from their function as components
of the home. The Lindens bargained for the finished product, a house;
not its various components"

(¶ 28). "Because the damage caused by the defective stucco and
roof shingling harmed only other components of the house, we conclude
the integrated systems exception applies, and the Lindens are therefore
barred from seeking tort remedies from the subcontractors" (¶
28).

Justice Bradley, in a dissent joined by Chief Justice Abrahamson and
Justice Butler, argued that this decision "frustrates" homeowners who
seek recourse against subcontractors because the homeowners may bring
neither tort claims nor contract claims and because the decision unduly
extends the reach of the economic loss doctrine (see ¶
35).

While attending a high school football game with her parents, a
4-year old girl fell 15 feet through the bleachers and was injured. The
bleachers had been standing on the site since 1969. The girl and her
parents sued various defendants, including the school district and ITW,
which constructed the bleachers. ITW was granted summary judgment
dismissing it from the case because the suit was filed after expiration
of the 10-year statute of repose that governs claims stemming from
improvements to real property. See Wis. Stat. § 893.89.
The court of appeals reversed on the basis that the bleachers were not
an improvement to real property because they were not "anchored" to the
ground.

The supreme court, in an opinion written by Justice Wilcox, reversed
the court of appeals. First, the supreme court held that the bleachers
constituted an improvement to real property and hence fell within the
statute of repose (§ 893.89). "The bleachers qualify as an
'improvement to real property' because they are a permanent addition to
Darlington's real property that enhance its capital value, involved the
expenditure of labor and money, and were designed to make the property
more useful or valuable" (¶ 33). Second, the statute of repose did
not violate the "right to a remedy" provision found in article I,
section 9 of the Wisconsin Constitution. The constitution simply did not
permit the court to "second-guess the policy choices of the legislature"
(¶ 43).

Third, section 893.89 did not violate equal protection guarantees
under the state and federal constitutions. "In sum, § 893.89
protects all persons involved in the improvement to real property but
does not protect individuals whose liability arises based on conduct
occurring prior to or subsequent to the improvement. These distinctions
are rational because they are real, substantial distinctions that are
germane to the purpose of the statute - to protect those involved in the
improvement of real property. This statute is distinguishable from its
predecessors because, as noted, the current statute immunizes all
conduct related to the improvement after a period of ten years. It does
not cover liability-forming conduct unrelated to the act of improving
property, such as manufacturing defects, for any amount of time. Stated
another way, the statute protects all who are involved in the
actual improvement of real property to the extent they participated
inimproving the property. The only time individuals
involved in the improvement of real property are held liable (after ten
years) under the statute is when their liability arises from conduct
that preceded or followed the actual improvement" (¶ 68). Thus,
"classifications within § 893.89 rationally serve the legitimate
purpose of limiting the long-term liability of those who are involved in
the improvement of real property. The distinctions drawn by the statute
are based on real and substantial distinctions, are germane to the
purpose of the law, are not based on existing circumstances only, apply
equally to all the members of each respective class, and suggest the
propriety of different legislation for each class" (¶ 80).

Fiduciaries - Trusts -
Negligence

Norwest Bank, now Wells Fargo, acted as trustee of an irrevocable
trust set up by Hatleberg's mother, Erickson. "In this case, during its
tenure as trustee, Wells Fargo became aware of a defect in a trust that
it had not drafted. It did not reveal that defect to the grantor,
Erickson. After Erickson's death, the trust was subject to increased tax
liability due to the drafting defect. Hatleberg sued Wells Fargo on
behalf of Erickson's estate, alleging several theories of liability. The
circuit court concluded that Wells Fargo breached a duty to Erickson,
and the court of appeals affirmed" (¶ 2).

The supreme court, in an opinion written by Justice Prosser,
affirmed, although on different grounds than those relied on by the
court of appeals, and remanded for a determination of damages. "First,
on the facts of this case, Wells Fargo had no duty to review the
Erickson trust to ensure its effectiveness as an instrument to avoid
estate taxes. The pertinent facts are that the trust instrument did not
assign this responsibility to the trustee and the trustee did not draft
the trust. Second, inasmuch as Erickson's estate suffered no physical
harm, Wells Fargo was not subject to 'Good Samaritan' liability under
§ 323 of the Restatement (Second) of Torts" (¶ 3).

The third and "definitive[]" issue, however, related to Wells Fargo's
duty to avoid negligently providing information (see ¶
33). "In this case, despite its knowledge of the problem with the trust,
Wells Fargo assured Erickson that 'she had nothing to worry about,' and
that 'for estate tax purposes, it makes sense to do the gifts'" (¶
37). The court noted that Wisconsin has adopted section 552 of the
Restatement (Second) of Torts. "We conclude that all the elements listed
in § 552 are present here. Wells Fargo made false statements to
Erickson by telling her that 'for estate tax purposes, it makes sense to
do the gifts' and that there were 'no problems' with her trust
after it knew of the Crummey problem. Wells Fargo made
the statements in the course of its business. Wells Fargo intended to
guide Erickson's business practices ('it makes sense to do the gifts').
Wells Fargo had a pecuniary interest in the transactions, as it received
a fee for serving as the trustee. Erickson relied on Wells Fargo's
statements and suffered pecuniary loss in the amount of more than
$173,000 in taxes. Accordingly, Wells Fargo had - and breached - a duty
under § 552. Similarly, we have no difficulty concluding that Wells
Fargo's statements to Erickson are negligent misrepresentations under
Wisconsin common law" (¶¶ 39-40). "As a matter of law, we
conclude that, because Wells Fargo held itself out as an expert in
managing Erickson's finances, it had a duty to avoid providing false
information to its client. It breached that duty, and we therefore
affirm the court of appeals" (¶ 42).

Medical Negligence - Screening
Exams

Preston was 23 weeks pregnant when she went into labor. She went to a
hospital, where some hours later she gave birth to a son (Bridon), who
weighed just 700 grams. The staff allegedly made no attempt to prolong
the child's life, and Bridon died several hours later. Preston sued the
hospital for a variety of claims, but the circuit court granted summary
judgment in the hospital's favor. The court of appeals affirmed.

Preston sought review of the dismissal of one claim that she brought
under the Emergency Medical Treatment and Active Labor Act (EMTALA), in
which she alleged that the hospital violated the EMTALA, specifically 42
U.S.C. § 1395dd(a), by not providing an appropriate medical
screening examination. The supreme court, in an opinion written by
Justice Prosser, reversed. The court framed the narrow issue as follows:
"[W]hether the EMTALA screening requirement applies to an infant born in
a hospital birthing center. Specifically, we must interpret whether the
statutory phrase 'comes to the emergency department' requires a baby to
be born in a hospital emergency room for the EMTALA screening
requirement to apply" (¶ 2).

Putting to one side the defendant's argument that Preston had waived
the issue (see ¶ 17), the court turned to legislative
history and extant regulations to clarify the ambiguity in the phrase
"comes to the emergency department." (see ¶¶ 23-26).
It concluded "that the proper interpretation of 'comes to the emergency
department' in this case imposes a duty upon a hospital to provide a
medical screening examination to a newborn who (1) presents to the
emergency room of the hospital or (2) is born in the birthing center of
the hospital and otherwise meets the conditions set forth in 42 C.F.R.
§ 489.24(b) (1999)" (¶ 38). Finally, the majority repeatedly
stressed that it resolved this issue on the pleadings and that it
concluded only that the complaint states a claim for which relief may be
granted. Thus it did not reach the summary judgment record.

Justice Crooks concurred and wrote separately to address the
dissent's discussion of whether Bridon was an "inpatient" for EMTALA
purposes, an issue not addressed by the majority.

Justice Roggensack, joined by Justice Wilcox, dissented on the ground
that the majority went astray by "overlook[ing] Bridon's status as an
inpatient" (¶ 47).

Sexual Abuse -
Statute of
Limitation

The plaintiff, identified as John Doe 67C, sued the Milwaukee
Archdiocese. Doe alleged that a now-deceased priest, George Nuedling,
sexually abused him in the early 1960s when Doe was a minor. Doe alleged
that trauma caused by the abuse caused him to repress memories of the
abuse until 2002. The plaintiff brought claims of negligence, "fiduciary
fraud," and breach of fiduciary duty. The circuit court granted summary
judgment in favor of the archdiocese and dismissed the complaint. The
court of appeals affirmed.

The supreme court, in an opinion written by Justice Prosser,
affirmed. The court held that "all three causes of action require that
at the time of Nuedling's alleged wrongful acts (1960-62), the
Archdiocese had contemporaneous knowledge of Nuedling's abusive
tendencies. Doe's complaint broadly alleges that the Archdiocese 'knew
or should have known of Nuedling's problems. ...' It provides the
basis for this claim by alleging that the Archdiocese had knowledge
about Nuedling from events that occurred in 1980, 1986, 1987, 1993,
2001, and 2002. The complaint asserts nothing from which a person could
infer that the Archdiocese had knowledge of Nuedling's misconduct before
1980. We conclude that for any of Doe's claims to survive, he had to
allege that the Archdiocese knew or had a basis for knowing that
Nuedling was a child molester as of 1960-62. His complaint
makes no such allegations. As we cannot add unpleaded facts to Doe's
complaint, we affirm the circuit court's dismissal of his claims without
reaching the other defenses the Archdiocese raises" (¶¶
5-6).

Under applicable statutes of limitation, such abuse against a
juvenile would have been time barred no later than 1969 or 1970. The
discovery rule, as construed by prior cases, including Pritzlaff v.
Archdiocese of Milwaukee, 194 Wis. 2d 302, 533 N.W.2d 780 (1995),
did not extend the time for filing the claims in this case. Nothing in
the complaint alleged, or raised a reasonable inference, that the
archdiocese "knew of [Nuedling's] proclivities as of 1960-62"
(¶ 39). The negligence claim alleged "the more specific tort of
'negligent supervision'" (¶ 43) but failed because the plaintiff
"did not allege any facts showing the Archdiocese's knowledge before
1980" (¶ 46).

The court next took up the claim for "fiduciary fraud." Although it
has yet to be recognized in Wisconsin as a separate tort, it obviously
is an amalgam of "fraud" and "breach of fiduciary duty" (see
¶ 48). "Special rules of pleading apply to fraud claims" (¶
52). Thus, the "fiduciary fraud" claim too was defective because the
complaint did not identify "particular individuals who made
misrepresentations, the date of the misrepresentations, or the details
of the misrepresentations" (¶ 53).

As for the breach of fiduciary duty claim, the supreme court assumed
without deciding that a fiduciary relationship existed between the
plaintiff and the archdiocese, but here too the lack of any allegation
that the fiduciary "knew" or possessed such information vitiated the
claim on the pleadings.

Justice Bradley, joined by Chief Justice Abrahamson and Justice
Roggensack, concurred but would have taken the "golden opportunity" to
resolve substantive issues relating to the Establishment Clause and the
discovery rule in favor of plaintiffs in these types of cases.

Justice Butler, joined by Justice Crooks, joined the majority opinion
but filed a concurrence that emphasized that the court "normally" does
not decide constitutional questions (such as the Establishment Clause
issue) when a case may be resolved on other grounds (as here).